RUSSELL ANDERSON, PETITIONER V. ROBERT E. CREIGHTON, JR., ET AL.
No. 85-1520
In the Supreme Court of the United States
October Term, 1986
On Writ of Certiorari to the United States Court of Appeals for the
Eighth Circuit
Reply Brief for the Petitioner
We demonstrated in our opening brief (at 25-29) that the
interpretation of Harlow v. Fitzgerald, 457 U.S. 800 (1982), adopted
by the court of appeals, if correct, would eliminate the immunity
defense in virtually every Bivens action in which the plaintiff's
claim is grounded in the Fourth Amendment. Respondents and amicus
American Civil Liberties Union (ACLU) do not dispute our conclusion;
they enthusiastically embrace that result (Resp. Br. 26-29; ACLU Br.
22-23). This Court's decisions provide no basis for the court of
appeals' radical reduction in the protection against monetary
liability afforded to law enforcement officers. They instead make
clear that an officer may be held liable in damages only if, in view
of the law at the time of the events at issue, a reasonable officer
would have known that the challenged conduct violated the
Constitution.
1. Respondents and the ACLU contend that our position is
inconsistent with both this Court's decision in Harlow and the
policies underlying the qualified immunity doctrine. Their arguments
are plainly wrong.
a. The principal argument advanced against our position (Resp. Br.
20-26; ACLU Br. 10-15) is that Harlow mandates an objective immunity
standard, and that petitioner's immunity defense therefore cannot
depend upon a case-specific injuiry into the facts known to law
enforcement officers at the time petitioner entered respondents' home.
But this Court in Harlow was not presented with that issue;
moreover, the Court subsequently has acknowledged that such an inquiry
may properly be undertaken in connection with the immunity
determination.
Prior to the Court's decision in Harlow, the immunity defense had
"both an 'objective' and a 'subjective' aspect" (Harlow, 457 U.S. at
815). A government official forfeited his immunity if he "knew or
reasonably should have known that the action he took within his sphere
of official responsibility would violate the constitutional rights of
the (plaintiff), or if he took the action with the malicious intention
to cause a deprivation of constitutional rights or other injury" (Wood
v. Strickland, 420 U.S. 308, 322 (1975)). The Harlow Court eliminated
the subjective component of this standard, holding that an official's
entitlement to immunity turns solely on "the objective reasonableness
of (the) official's conduct, as measured by reference to clearly
established law" (457 U.S. at 818 (footnote omitted)).
The question in this case is how the objective reasonableness test
should be applied when the settled constitutional standard governing a
defendant's conduct contains as one element of the constitutional
standard itself a case-specific factual inquiry, such as the inquiry
into petitioner's knowledge required under the Fourth Amendment. That
issue was not addressed in Harlow, which eliminated the portion of the
immunity test mandating an inquiry into the defendant's subjective
good faith. The Court did not purport to deal with the present
situation where the facts known to petitioner are an element of the
clearly established constitutional right that is implicated and thus
are inescapably relevant in determining whether that right has been
violated.
The parties in the present case offer two different approaches for
applying Harlow in this context. Respondents assert that all
case-specific factual inquiry should be precluded. Under that
approach, the defendant would be deprived of his immunity whenever the
abstract consititutional standard that governed his conduct -- in this
case the requirements of probable cause and exigent circumstances --
was clearly established. Respondent's rule is not only fundamentally
inconsistent with Harlow; it would result in a drastic reduction in
the protection from damages liability afforded to law enforcement
officers and other government officials.
We contend that the immunity test encompasses the factual inquiry
required by the governing constitutional standard. Thus here the
question is whether a reasonable officer could have believed that the
facts known to petitioner constituted probable cause and exigent
circumstances justifying a warrantless search. /1/
This Court's recent decision in Malley v. Briggs, No. 84-1586 (Mar.
5, 1986), demonstrates that our interpretation of Harlow is correct.
The issue in Malley was whether an officer who executed an arrest
warrant could be held liable in damages if a court subsequently
determined that the warrant was not supported by probable cause. This
Court rejected the defendant's claim that a police officer is immune
from monetary liability whenever the challenged conduct was authorized
by a warrant. It further stated, however, that the officer would be
immune from damages liability unless "a reasonably well-trained
officer in (the defendant's) position would have known that his
affidavit failed to establish probable cause and that he should not
have applied for (a) warrant" (slip op. 9 (emphasis supplied)). Thus,
the Court concluded that the resolution of the officer's immunity
claim turned upon a case-specific factual inquiry.
The relevant facts in the warrant context are, of course, the facts
before the court that issued the warrant. See Whiteley v. Warden, 401
U.S. 560, 565 n.8 (1971). In the warrantless search context, the
analogous inquiry turns upon the facts known to the officer at the
time that he performs the search or makes the arrest. See Beck v.
Ohio, 379 U.S. 89, 96 (1964). Malley thus makes clear that an inquiry
into these facts is appropriate under Harlow.
Respondents and the ACLU attempt to distinguish Malley based on the
existence of a warrant in that case, and suggest that a different rule
is appropriate where, as here, there has been no prior judicial
authorization of the search (Resp. Br. 25-26; ACLU Br. 29-30). But
nothing in Malley indicates that the Court's discussion of the Harlow
standard was influenced by the fact that the police officer acted
pursuant to a warrant. Indeed, Malley rejected the argument that a
special immunity rule should apply when officers act pursuant to a
warrant, and affirmed that the immunity of such officers is governed
by the general standard announced in Harlow. Under Malley, therefore,
petitioner can be deprived of immunity only if a "reasonably
well-trained officer in (petitioner's) position would have known" --
from the relevant constitutional standards and the decisions applying
those standards in particular circumstances -- that the information
known to law enforcement officers about Vadaain Dixon did not
establish probable cause and exigent circumstances. Malley v. Briggs,
slip op. 9; see also Mitchell v. Forsyth, 472 U.S. 511, 535 n.12
(1985). /2/
b. Respondent's contention that petitioner's immunity should not
turn upon an inquiry into the particular facts of this case suffers
from a more basic flaw: it is wholly incompatible with Harlow's
conclusion that a government official should be subjected to damages
liability only when the official "could be expected to know that (his)
conduct would violate statutory or constitutional rights" (Harlow, 457
U.S. at 819). As we showed in our opening brief (at 25-29), the legal
standards identified by the court of appeals -- the requirements of
exigent circumstances and probable cause -- do not, without reference
to a particular factual context, provide any guidance in determining
whether a particular search would violate the Constitution. And the
search for "clearly established law" becomes meaningless if the legal
rule need not be sufficiently particular to enable a reasonable
official to determine whether his conduct is constitutional. Indeed,
clearly established law always can be found at some level of
generality, and the Court has rejected the argument that the existence
of a general constitutional standard is by itself sufficient to defeat
an immunity claim (see Pet. Br. 15-20).
Respondents do not seriously contend that the concepts of probable
cause and exigent circumstances themselves enable an officer to
determine the legality of particular conduct. Instead, they assert
simply (Br. 15-35) that the existence of a settled legal standard is
sufficient to eliminate immunity. That rule, of course, would
drastically reduce the protection provided by Harlow (see Pet. Br.
25-29).
Amicus ACLU argues (Br. 18-21, 25-29, 39-45) that the generality of
the applicable Fourth Amendment standards is beside the point because
those standards themselves protect law enforcement officers by
providing a margin for official error. As we showed in our opening
brief (at 25-29), however, an officer would be subject to damages
liability whenever he violated the Fourth Amendment, no matter how
close the issue or how understandable the officer's error. The Fourth
Amendment standards thus do not provide the "ample room for mistaken
judgments" that the immunity defense is designed to ensure (Malley,
slip op. 7). /3/
Moreover, the ACLU's attempt (Br. 23-28, 39-40) to equate the
probable cause standard with Harlow's objective reasonableness
standard is plainly wrong. Probable cause looks to whether the law
enforcement officials have information "sufficient to warrant a
prudent man" in arriving at certain conclusions about the likelihood
of criminal conduct or the presence of evidence (Beck v. Ohio, 379
U.S. at 91). The Harlow standard, by contrast, turns upon a
comparison of an official's conduct with the then-exisiting caselaw,
and asks whether the conduct violated clearly established rights. It
is thus quite possible that a search may violate the Fourth Amendment
for lack of probable cause, but nonetheless satisfy the Harlow test
because the officer's conduct was not clearly unconstitutional under
the case law at the time the search occurred.
Indeed, this Court's decision in Malley rests squarely upon the
conclusion that an officer's conduct may violate the Fourth Amendment
and yet be objectively reasonable within the meaning of Harlow. As
the Court stated, even an officer who violates the Fourth Amendment is
protected by immunity unless "a reasonably well-trained officer in
(his) position would have known that his affidavit failed to establish
probable cause." Slip op. 9; see also United States v. Leon, 468 U.S.
897, 922-923, 926 (1984) (finding that officer's reliance on a warrant
was objectively reasonable even though the warrant was not supported
by probable cause). /4/
c. Respondents (Br. 20-22) and the ACLU (Br. 33-39) also argues
that any factual injury into the defendant's knowledge is contrary to
Harlow because it would transform what should be a wholly legal
inquiry into a fact-specific determination, and make impossible the
expeditious resolution of immunity claims on motion for summary
judgment. But Harlow did not indicate that all immunity claims would
raise solely legal issues or that every case could be determined on
summary judgment. Indeed, some facts must be adduced prior to the
adjudication of every immunity claim so that the court may determine
the conduct that is in issue and the constitutional standard by which
that conduct is to be measured. The Court in Harlow stated only that
its standard would "permit the resolution of many insubstantial claims
on summary judgment." 457 U.S. at 818; see also Mitchell v. Forsyth,
472 U.S. at 526-527 (recognizing that an immunity defense may be based
upon facts uncovered through discovery). Frequently, there will be no
dispute about the facts, and a court will be able to adjudicate the
immunity claim on motion for summary judgment. Where the facts are in
dispute, some discovery may be warranted; but summary judgment
subsequently may be appropriate if the evidence developed in discovery
resolves the factual dispute. /5/
Also, respondents' position -- that the need to avoid discovery
justifies a drastic reduction in the immunity available to law
enforcement officers in the Fourth Amendment context -- is quite
bizarre in view of the Court's determination that the monetary
liability of government officials should be limited to situations
where the officials could have known that their conduct violated the
Constitution. Faced with a choice between permitting some discovery
and depriving an officer of immunity, respondents choose to eliminate
immunity. That conclusion simply cannot be reconciled with the
principles that underlie this Court's decision in Harlow. /6/
2. Respondents argue (Br. 33-35) that the indemnification policy
recently adopted by the Department of Justice eliminates the need for
any "broadened" immunity doctrine. The policy "permits, but does not
require, the Department to indemnify a Department employee who suffers
an adverse verdict, judgment, or other monetary award provided that
the actions giving rise to the judgment were taken within the scope of
employment and that such indemnifications is in the interest of the
United States, as determinted by the Attorney General" (51 Fed. Reg.
27022 (1986)). The decision whether a Department of Justice official
will be indemnified generally will not be made until after the entry
of an adverse judgment against the official (ibid., to be codified at
28 C.F.R. 50.15(c)(3)). /7/ And in any event this policy does not
extend to other federal officials -- e.g. agents of the IRS, Customs
Service, Coast Guard, etc. -- who also exercise responsibilities that
may lead to potential claims under the Fourth Amendment.
This indemnification policy is irrelevant to the question presented
in this case regarding the scope of immunity under Harlow. The basic
reason for conferring immunity on government officials, this Court has
observed, is that an official would be deterred from forcefully
exercising his authority if he could be required to answer in damages
for actions that were not unreasonable in light of the circumstances
at the time they were undertaken. Wood v. Strickland, 420 U.S. at
319-320; Pet. Br. 23-25. Because the decision whether to indemnify
an official generally is not made until after the entry of an adverse
judgment, a Justice Department official will not know at the time that
he acts whether or not he will be indemnified. The indemnification
policy thus will not eliminate the chilling effect that flows from the
fear of monetary liability, and immunity remains an important
protection assuring vigorous conduct by public officials. /8/
3. Both respondents and the ACLU make a variety of erroneous
statements concerning petitioner's entitlement to immunity in this
case. As we explained in our opening brief (at 30-34), we do not seek
the resolution of petitioner's immunity claim by this Court, but urge
a remand to allow the lower courts to apply the proper legal standard
to petitioner's immunity claim. To avoid any misunderstanding
regarding the issues in this case, however, we will briefly respond to
these misstatements.
First, respondent's plainly err in asserting (Br. 14, 19-20 & n.2,
51-52) that we have "confess(ed) error" by stating that discovery may
be appropriate on remand. The court of appeals in this case rejected
petitioner's immunity claim on the merits. If this Court reverses the
court of appeals' judgment and remands the case for further
proceedings, the district court will be free to order the discovery
that it deems appropriate. /9/
Second, both respondents (Br. 48-51) and the ACLU (Br. 28-29 n.5,
37, 40-41) repeatedly refer to petitioner's subjective beliefs
regarding his authority to enter respondents' home and thus suggest
that those beliefs are somehow relevant to the immunity inquiry. But
this Court has made clear that a law enforcement officer's subjective
beliefs are irrelevant under the Fourth Amendment. Florida v. Royer,
460 U.S. 491, 507 (1983) (plurality opinion); Director General v.
Kastenbaum, 263 U.S. 25, 27-28 (1923); Pet. Br. 30 n.16. And, as we
have discussed, Harlow eliminated the general inquiry into the
defendant's subjective intent required under the prior immunity
standard. Thus, petitioner's subjective beliefs are wholly irrelevant
here.
Third, respondents argue (Br. 51-58) that the court of appeals
properly reversed the district court's determination that petitioner's
actions complied with the requirements of the Fourth Amendment. We
did not seek review of the court of appeals' determination that -- on
this record -- the question whether petitioner violated respondents'
Fourth Amendment rights presents a jury issue (see Pet. App. 7a). All
that we seek here is the reversal of the court of appeals' improper
elimination of petitioner's immunity defense so that on remand
petitioner will have an opportunity to establish his entitlement to
immunity under the correct legal standard.
For the foregoing reasons, and the reasons stated in our opening
brief, the judgment of the court of appeals should be reversed.
Respectfully submitted.
CHARLES FRIED
Solicitor General
FEBRUARY 1987
/1/ A third alternative is possible. The official could be
entitled to immunity whenever the governing constitutional standard
turns upon a case-specific factual inquiry. This alternative would
fulfill respondents' desire to eliminate all factual inquiry, but
triggers immunity as indiscriminately as respondents would deny it.
/2/ The ACLU mischaracterizes (Br. 7, 37) our position by asserting
that under our approach an official will be divested of immunity only
if "the particular conduct of which (he) has been accused has
previously been held illegal" and that immunity will be available to
law enforcement officers "whose conduct indicates ignorance or willful
disregard of controlling cases in this Court." In fact, a prior
decision addressing the precise factual circumstances is not required,
and the officer's actual ignorance of clearly established law is the
irrelevant. The relevant inquiry is the one framed by this Court in
Malley -- whether a reasonably competent officer in that officer's
position, i.e., possessed of the knowledge that officer had, would
have recognized that the conduct was unlawful (slip op. 9 & n.8).
The ACLU also states that the standard for which we contend is a
departure from Harlow because it inquires "whether the official 'could
reasonably have believed that his (action) was legally justified'"
(ACLU Br. 33-34, quoting Pet. Br. 30). But that is virtually the
precise language that the Court used in Harlow and Malley. See
Harlow, 457 U.S. at 818, 819; Malley, slip op. 9 & n.8.
/3/ In attempting to support its position, the ACLU cites (Br.
19-20) as "the kind of reasonable error that is incorporated into the
probable cause concept" the situation in which "an officer arrests a
robbery suspect on the strength of a mistaken identification." But
where an officer relies on an identification provided by a witness and
the identification turns out to be mistaken, the officer has not
committed any error at all. In addition, the ACLU's example gives no
comfort to the officer who makes an erroenous judgment by, for
example, mistakenly concluding that the facts that he knows amount to
probable cause. This Court has recognized the latter determination to
be extremely difficult (see Pet. Br. 28-29) and, under the ACLU's
theory, the officer would be liable in damages every time that he
erroneously concludes that a set of facts amount to probable cause.
Without any room for error, officers may well become timid and protect
themselves from monetary liability by refusing to proceed against a
wrongdoer absence overwhelming evidence of criminal activity.
Although the ACLU endorses that result (Br. 41 n.6), such a chilling
effect upon legitimate government conduct is precisely what the Harlow
standard is designed to avoid (see Pet. Br. 23-25).
/4/ Respondents warn darkly (Br. 40) that "one of the government's
major if unacknowledged goals in this litigation" is the extension of
the good faith exception recognized in United States v. Leon, supra,
to the warrantless search context. However, the question whether to
broaden the good faith exception as it applies to the exclusion of
evidence involves considerations other than those relevant to the
inquiry under Harlow, and a decision for petitioner in this case would
not be determinative of that issue (Pet. Br. 20-21 n.12).
Respondents (Br. 35-39) and the ACLU (Br. 44-45) suggest that the
rule for which we contend will somehow alter the probable cause and
exigent circumstances standards themselves. That is obviously wrong.
The question in this case is the meaning of the immunity standard
adopted in Harlow, not the interpretation of these Fourth Amendment
principles, which apply both in suppression hearings and in
determining whether a Bivens defendant actually violated the
Constitution. Respondent's claim (Br. 27-29) that the rule for which
we contend will hinder the development of Fourth Amendment law is also
flawed. Those issues will continue to be litigated, as they have been
in the past, in suppression hearings in criminal cases.
/5/ The defendant in a case presenting a Fourth Amendment claim
typically will file a motion for summary judgment on immunity grounds
supported by an affidavit listing the facts that he knew at the time
of the challenged conduct. The issue can be resolved on summary
judgment if (1) the plaintiff does not challenge the facts set forth
in the affidavit, or (2) the defendant would be entitled to immunity
even if the facts were as the plaintiff asserts them to be. Where
necessary in view of the nature of the facts in issue, the court may
order limited discovery before ruling on the motions for summary
judgment.
/6/ This case does not present any question regarding the
application of the Harlow test when the established constitutional
standard that governed the defendant's conduct has as an element and
therefore directs an inquiry into a government official's purpose;
purpose is not an element of the "constitutional tort" in this case
and thus petitioner's motivation is irrelevant under the Fourth
Amendment (see pages 11-12, infra). In defending other individuals
sued in Bivens actions where purpose (as constrasted to factual
beliefs) does constitute an element of the "constitutional tort", the
United States has advanced the view that the rationale of Harlow
reasonably extends to barring the probing of a defendant's subjective
purpose. Halperin v. Kissinger, No. 84-5095 (D.C. Cir. Dec. 5, 1986).
/7/ As an agent of the Federal Bureau of Investigation at the time
of the events at issue in this case, petitioner would be eligible for
indemnification under this policy.
/8/ The ACLU argues (Br. 31-33) that the immunity rule for which we
contend is inappropriate because an officer was not entitled to
immunity at common law if a warrantless arrest subsequently was found
to be unlawful. Even if the ACLU's argument were true, it would be
irrelevant because this Court stated in Harlow that the immunity
standard there adopted applies to any "government official &
performing discretionary functions." 457 U.S. 818; see also id. at
821 (citation omitted) (Brennan, J., concurring) (the Harlow standard
"applies 'across the board,' to all 'government officials performing
discretionary functions'"). Moreover, it is not at all clear that
petitioner would not have been entitled to immunity at common law.
One of the authorities cited by the ACLU recognizes the immunity
defense in this context, stating that an officer "is protected in
every case where he acts under a reasonable mistake as to the
existence of facts which * * * justify an arrest without a warrant"
(Restatement (Second) of Torts Section 121 comment i (1965)).
/9/ We discussed the considerations governing the availability of
discovery in our opening brief (at 33-34 n.18). Contrary to
respondent's assertion (Br. 19-20 & n.2) we did not concede that
discovery would be appropriate in this case. That is a question to be
resolved by the district court on remand.